----- Original Message -----
From: Lyall Sempf
To: john.kilcullen@mq.edu.au
Cc: Macquarie Uni
Sent: Tuesday, September 07, 2004 2:24 PM
Subject: British monarch is not legally the head of state of Australia
Mr Rupert John Kilcullen
Senior Research Fellow, Department of Politics
Macquarie University
NSW 2109, Australia
Dear Sir,
Thank you for you response.
I was hoping that if you disagreed with me you might have explained why you
believe the [63 & 64 VICT] Constitution of Australia [CH 12] Constitution
Act is still valid in Australia.
I quoted from the House of Representatives Hansard 10th September 1919, p
12169 where Prime Minister Hughes, when introducing the Treaty of Peace Debate,
said
"By this recognition Australia became a nation, and entered into a family
of
nations on a footing of equality."
Also, the House of Representatives Hansard 30th September 1921, p 11631- WM
Hughes, Prime Minister and Attorney-General, reporting on the 1921 Imperial
Conference:
"We had been a Dominion; the war made us a nation ...." " ...
Then came the Peace Conference on which
the Dominions were granted separate representation, and sat on a footing of
equality with the great nations
of the earth."
And, on 11th November 1921 King George V recognised
the sovereignty of Australia during the ceremonial acceptance of the credentials
of the first Australian High Commissioner to the UK, when he welcomed Sir
Joseph Cook as "… the representative of our ex-colony, the newly
independent nation of Australia."
Clause 8 of the Constitution Act states "After the passing of this Act
the Colonial Boundaries Act, 1895,
shall not apply to any colony which becomes a State of the Commonwealth; but
the Commonwealth shall
be a self-governing colony for the purposes of the Act."
This is evidence that Australia became an independent nation in 1919.
The Government's own web site correctly states "The Commonwealth of Australia
Constitution
Act 1900 is an Act of the Parliament of the United Kingdom at Westminster."
(Refer snapsot below)
The Charter of the United Nations, Article 2, section 4 states:
All Members shall refrain in their international relations from the threat
or use of force against
the territorial integrity or political independence of any state, or in any
other manner inconsistent
with the Purposes of the United Nations.
(Web http://www.un.org/aboutun/charter/)
As Australia is an independent nation and a member of the UN, could you please
how Australia
can be legally 'governed' under UK law?
From various readings, authorities on this subject have stated that when Australia
achieved independence,
the [63 & 64 VICT] Constitution of Australia [CH 12] Constitution Act
became ultra vires with
regard to Australia.
Yours sincerely,
Lyall Sempf
Part time student in International and Constitutional Law
---------------------------------------------------------------------------------------------------------
----- Original Message -----
From: "John Kilcullen" <John.Kilcullen@hmn.mq.edu.au>
To: "Lyall Sempf" <lsempf@bigpond.net.au>
Sent: Wednesday, September 08, 2004 10:53 AM
Subject: Re: Why is Australia 'governed' under UK law
Dear Mr Sempf,
The legitimacy of constitutions and law does not rest upon any particular historical event, but on the CURRENT consent or acquiescence of the population (which of course may have a lot to do with their beliefs about history).
If circumstances and attitudes change much, a legal system
that has had the consent of the population might lose it -- they might become
so discontented with it as to support a revolution, or at least a major
restructure. Constitutions the British imposed on some countries as they left
(Nigeria, for example) have long since been torn up.
This has not happened in Australia. I don't think there
is any doubt that the Australian legal and constitutional system has now,
and has had all along, the consent of the great majority of the population.
If that is true, then what Queen Victoria thought when she assented to the
Australian constitution, or what Billy Hughes said in 1919, etc. etc., simply
does not matter. CURRENT consent is the basis of legitimacy, not historical
origin.
There is nothing wrong with one nation inheriting or borrowing
a political or legal system from another. Inheritance is not incompatible
with independence. The British Parliament a century ago enacted a constitution
that had been drafted by Australians; since then Australia's relationship
with Britain has changed enormously, but we are content to keep the constitution
we have inherited from the earlier period.That constitution provides for the
possibility of amendment.
It has been amended, not by the British Parliament but by the Australian process
the constitution provides, and it will be amended further in the future. We
might amend it out of all recognition, so that it becomes a new constitution,
but we have not so far done that and probably never will. We are independent,
but we choose to retain substantially unchanged a constitution inherited from
a time when we were not independent. That is a matter of free choice, not
something imposed on us by a foreign power.
Why don't you ask the people around you, whether they accept
the constitution and the law based on it? I gather that you don't accept it,
and I suppose you have friends who don't, but ask more widely. I think you
will find that very few people are so discontented with the system that they
have withdrawn their consent. The history-based discontent you feel will seem
irrelevant to most people. Their immediate question will be, what constitution
do you want instead? In other words, the practical question is not where (historically
or geographically) our current arrangements come from, but how they might
be improved or replaced with something better. I suggest you turn your mind
to that.
Have a look at http://www.humanities.mq.edu.au/Ockham/improv.html
Best wishes,
John Kilcullen